Concept
Federal Arson Statute
Arson
Federal Arson Statute
Every offense in the preceding sections is a creature of state law, because arson has always been prosecuted by the states. Congress has nonetheless enacted a federal arson provision, 18 U.S.C. § 844(i), and an exam stem built around a firebomb invites the assumption that it applies. The statute punishes anyone who maliciously damages or destroys, or attempts to damage or destroy, a building, vehicle, or other real or personal property "by means of fire or an explosive," provided the property is "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce," and it carries a prison term of five to twenty years.1
Read beside the state offenses, the federal statute is broader in some respects. It reaches explosions as well as fires, which makes sense given that the provision began in 1970 as an explosives measure in the Organized Crime Control Act, with the word "fire" added by amendment in 1982.2 It also asks for no dwelling and no particular owner, so vehicles and personal property count along with buildings. Its limiting feature is the commerce requirement, which works as a jurisdictional hook: a fact about the property that ties the crime to a subject Congress may regulate, and without which no federal case exists. Nearly all the litigation over this statute therefore concerns what it means for property to be "used in" commerce.
In United States v. Jones, the defendant tossed a Molotov cocktail through a window into a Fort Wayne home owned and occupied by his cousin. No one was hurt, but the fire severely damaged the house, and a jury convicted him under § 844(i) and two related counts, producing a total sentence of 35 years that the court of appeals affirmed.3 The Supreme Court reversed the arson conviction. It held that an owner-occupied residence not used for any commercial purpose is not property "used in" commerce or a commerce-affecting activity, so its arson is not a federal crime under § 844(i).4
The Court read the provision to cover only property currently used in commerce or in an activity affecting commerce, and the cousin's house was a dwelling used for everyday family living.5 The word "used" carries the weight, because it points to what the property is doing now. A building is covered when it is employed for a commercial purpose, such as being rented to tenants, and it is not covered merely because it has some remote link to the national economy, such as a mortgage or an insurance policy. If a link that thin were enough, nearly every home in the country would qualify, and the provision would turn virtually every arson into a federal offense, which is the reading the Court refused to adopt.6
Two background principles explain why the Court chose the narrower reading. Arson is a paradigmatic state crime, and unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes.7 Ambiguity in a criminal statute is also resolved in favor of lenity, so when two readings of the criminalized conduct are available, the Court requires Congress to have spoken in clear and definite language before it chooses the harsher one.8 The phrase "used in" commerce is not clear enough to pull ordinary house fires into federal court, and avoiding the constitutional question a broader reading would raise points the same way.9
The contrast case is rental property. A defendant who attempts to burn a two-unit apartment building that he owns and rents to tenants has attacked property used as rental property in a commerce-affecting activity, so § 844(i) applies.10 Tenants live in those apartments just as the cousin lived in the house, so habitation cannot be what separates the two buildings. The difference is the use to which the owner puts the property: the apartment building is employed to produce rent, and the cousin's house is employed only to house a family.
The first scene moves only with the use of the property, and the second shows that the means of destruction does not matter to the federal statute, since it names both fire and explosives. A finding that § 844(i) does not apply does not leave the conduct unpunished. The facts of Jones describe a malicious burning by fire of a house that someone other than the defendant lived in, so the four elements of common law arson are present,11 and the defendant started the fire with the purpose of destroying an occupied structure of another, which satisfies § 220.1(1)(a) of the Model Penal Code.12 The Court left cases of this kind to the law enforcement authorities of the states.13
On an exam stem, the trap is assuming federal jurisdiction because the weapon is an incendiary device or because the fire was severe. The better question is what the damaged property was being used for when it burned. A rented building, a store, or another property employed for commercial purposes brings the federal statute into play, while an owner-occupied home used only for family living leaves the case to state arson law.