902 NEBRASKA LAW REVIEW IV. PENDING LEGISLATION [Vol. 59:859 At the time of the Enmons decisions, revisions to the Hobbs Act were already in the process of formulation. In 1966, Congress created the National Commission on Reform of Federal Criminal Laws,219 commonly called the "Brown Commission" after its chairman, Edmund G. Brown, former Governor of California. The mandate of this Commission was to study the existing body of federal criminal laws, including the Hobbs Act, and to make recommendations to Congress for revision and recodification. In 1971 the Commission submitted its final report, consisting primarily of a proposed draft of a federal criminal code with brief comments for each section.220 Under this code, extortion, a separate offense under the Hobbs Act, was simply treated as a form of theft. Section 1732 provided that: "A person is guilty of theft if he: . . . (b) knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat. . . ."221 Section 1741 further provided that 222 'threat' means an expressed purpose, however communicated, to (i) cause bodily injury in the future to the person threatened or to any other person; or (ii) cause damage to property; or (iii) subject the person threatened or to any other person to physical confinement or restraint. . . or (x) bring about or continue a strike, boycott, or other similar collective action to obtain property or deprive another of his property which is not demanded or received for the benefit of the group which the actor purports to represent; or (xi) cause anyone to be dismissed from his employment, unless the property is demanded or obtained for lawful union purposes. Part (x) of the definition stated that a strike or boycott which is not for the purpose of obtaining benefits for the whole group, as in the typical "payoff" or "shakedown" situation, is to be considered illegal. Presumably this is true even though the strike or boycott is an otherwise peaceful one. It also seems clear from the structure of the definition that violence intended to coerce the settlement of a strike (i.e., causing bodily injury, property damage, or physical restraint to obtain an otherwise legitimate group benefit) is also illegal. Finally, as the comments to this section of the draft make clear, part (xi) was clearly designed to exclude from the coverage of the section any threatened or actual enforcement of a union security agreement as long as the dues received under threat of dis 219. Act of Nov. 8, 1966, Pub. L. No. 89-801, 80 Stat. 1516, as amended, Act of July 8, 1969, Pub. L. No. 91-39, 83 Stat. 44. 220. Reform of the Federal Criminal Laws: Hearings Before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, Part I, 92d Cong., 1st Sess. 129 (1971) [hereinafter cited as Hearings, Part I. 221. Id. at 359. 222. Id. at 373-74. 1980] LABOR VIOLENCE 903 charge were used for lawful union purposes.223 Thus, the Brown Commission draft would not have accomplished any major changes in the Hobbs Act as it had been construed before Enmons. The Brown Committee report was submitted to Congress, where it was referred to the Senate and House Committees on the Judiciary and to the President, who created a Criminal Code Revision Unit within the Department of Justice for further study and revision. The Senate Committee's end product, after two years of hearings, was bill S. 1,224 introduced by Senators McClellan, Hruska and Ervin on January 4, 1973.225 Although it was derived from the Brown Committee draft, S. 1 differed from that draft in many ways. With respect to the extortion provisions, S. 1 opted in favor of a return to the carefully hammered out language of the existing Hobbs Act. Section 2-9C3 provided that: "A person is guilty of extortion if he intentionally obtains services or property of another from another person, with the consent of the other person, where such consent is induced by wrongful use of actual or threatened force, violence or fear, or under color of official right."226 The section-by-section explanation of S. 1 simply stated that "[t]he language is taken from [section] 1951 to carry forward its judicial construction,"227 presumably including, insofar as Supreme Court cases are concerned, the Green decision. It is significant to note that the Enmons decision, appearing on February 22, 1973, had not been handed down at the time this explanation was written. In the meantime, the Criminal Code Revision Unit of the Justice Department had also been working on a draft criminal code. S. 1400228 was introduced by Senators Hruska and McClellan on March 27, 1973229 after Enmons had been rendered, and was clearly drafted with the intent of repudiating the decision. Section 1722(a) provided that: “A person is guilty of an offense if he knowingly obtains property of another by force, or by threatening or placing another person in fear that any person will be subjected to bodily 223. Id. at 374. 224. S. 1, 93d Cong., 1st Sess. (1973); Reform of the Federal Criminal Laws: Hearings on S. 1, S. 716, S. 1400, S. 1401 Before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, Part V, 93d Cong., 1st Sess. 4211-748 (1973) (hereinafter cited as Hearings, Part V]. 225. 119 CONG. REC. 92 (1973). 226. Hearings, Part V, supra note 224, at 4346. 227. Id. at 4786. 228. S. 1400, 93d Cong., 1st Sess. (1973), Hearings, Part V, supra note 224, at 48625197. 229. 119 CONG. REC. 9634 (1973). 904 NEBRASKA LAW REVIEW [Vol. 59:859 Hearings were subsequently held on all three versions of a pro- The next step was taken on May 2, 1977, when Senators McClel- 230. Hearings, Part V, supra note 224, at 5966. 231. Id. at 4847. 232. S. 1, 94th Cong., 1st Sess. (1975). 233. SENATE COMMITTEE ON THE JUDICIARY, 94th Cong., 2D SESS., DRAFT REPORT TO 234. Reform of the Federal Criminal Laws: Hearings on S. 1 Before the Subcom- 235. 123 CONG. REC. S6831 (daily ed. May 2, 1977). 236. S. 1437, 95th Cong., 1st Sess. (1977), Reform of the Federal Criminal Laws: 92-211 O-82--33 1980] LABOR VIOLENCE 905 process. The extortion offense, however, was again simply defined, as obtaining property of another “(1) by threatening or placing another person in fear that any person will be subjected to bodily injury or kidnapping or that any property will be damaged; or (2) under color of official right."237 The Committee Report on S. 1437238 contains an excellent summary of the then existing law with respect to extortion under the Hobbs Act and indicates approval of the judicial decisions holding that "fear" under the statute applies not only to fear of physical violence but also fear of economic harm to the victim's property or business. Moreover, the report is unequivocal in its repudiation of the Enmons "legitimate objectives" rationale. Noting that such an exception had not been recognized with respect to extortion by other persons, the Committee felt that labor union officials were not entitled to such a privileged treatment. The thrust of an extortion statute should be to punish violent extortionate means to obtain the property of another regardless of the legality of the ends sought, and this principle should apply in the collective bargaining context as well as elsewhere. Thus, an employer who blows up a union office or causes a union official to be assaulted in order to instill fear and thereby obtain property of the union ought to be guilty under the Act irrespective of whether the property could have been obtained lawfully through collective bargaining. And the same should be true in the reverse situation. Accordingly, the Committee has proposed in effect to overturn the Enmons result by treating the parties engaged in a labor dispute no differently from other persons in terms of the applicable prohibitions under this section, which is limited to extortionate means involving actual or threatened violence.239 The Committee Report, however, also responded to the concern expressed by the Enmons Court that minor acts of picket line violence might, but for a narrow reading of the statute, be elevated into a federal felony. The report noted that in the Committee's view such acts do not fall within the purview of the Hobbs Act (nor should they be Federally punishable) since there is no intent thereby to obtain the employer's property through the use of force and the acts do not in fact cause the employer to part with his property; in short, such isolated acts of violence do not partake of the nature of extortion, 240 To insure that the Act would be construed in that fashion, the proposed extortion provision contained an additional section specifically recognizing that “[i]t is an affirmative defense to a prosecution under subsection (a)(1) that the threatened or feared injury or damage was minor and was incidental to peaceful picketing or other concerted activity in the course of a bona fide labor 237. Id. at 9602. 238. S. REP. No. 605, 95th Cong., 1st Sess. (1977). 239. Id. at 624-25. 240. Id. at 624. 906 NEBRASKA LAW REVIEW [Vol. 59:859 dispute."241 Senator Kennedy, who introduced S. 1437 in the Senate, explained that "a defense is added to the extortion provision to make it clear that minor incidents occuring in the course of legitimate labor picketing are not punishable under the extortion statute."242 Immediately thereafter, however, Senator Kennedy introduced an amendment to the extortion provision which deleted the “affirmative defense” section altogether and substituted the following: (b) PROOF.-In a prosecution under subsection (a)(1) in which the threat or fear is based upon conduct by an agent or member of a labor organization consisting of an act of bodily injury to a person or damage to property, the pendency at the time of such conduct, of a labor dispute, as defined in 29 U.S.C. 152(9), the outcome of which could result in the obtaining of employment benefits by the actor, does not constitute prima facie evidence that property was obtained 'by' such conduct.243 In Senator Kennedy's view, the amendment simply clarified existing law, which, as he understood it, required proof not only of acts of violence but also of the fact that the violence was done with the intent of extorting. Beyond saying that and restating what the amendment itself said directly,244 he offered no explanation. Senator Thurmond's remarks, on the other hand, were considerably more enlightening. In explaining his lack of objection to the amendment, he noted that: This amendment would add a "proof" subsection designed to prevent a trial judge from holding that, in a case described in the new subsection, mere proof that personal injury or property damage occurred during a labor dispute constitutes a sufficient showing of the causal relationship between the obtaining of property and the threat of fear based on that injury or damage to justify submission of that issue to the jury. It prevents such a holding directly, by providing that proof of the coincidence of the labor dispute and the injury or damage in such a case is not "prima facie evidence" of the causal relationship. It is true, of course, that such a causal relationship sometimes does exist where injury or damage occurs during a labor dispute. This proposed subsection, however, is based on the belief that where there is a cause and effect relationship, or the intent to obtain property by means of a threat or fear resulting from injury or damage, it should be possible to prove, in addition to that coincidence, some other circumstances adding to the strength of the inference of causation. The proposed subsection does not address the question of which particular additional circumstance or circumstances, when proven along with that coincidence, will suffice to justify the submission of the issue to the jury. One which clearly would be sufficient in many cases to avoid a directed verdict is the circumstance that the defendant was, or conspired with, a person negotiating on behalf of the union involved in the labor dispute. The same result might obtain, where the repetitive or systematic 241. Hearings, Part XIII, supra note 236, at 9602-03. 242. 124 CONG. REC. S12 (daily ed. Jan. 19, 1978). 243. Id. at S17. 244. Id. at S17-18. |