On March 24, Deputy Attorney General Jeffrey Rosen sent U.S. attorneys and federal law enforcement agencies a memo informing Department of Justice officials that they should consider prosecuting certain “purposeful exposure or infection of others with COVID-19” under federal terrorism-related statutes. The memo followed warnings from the FBI that white supremacist groups were encouraging members who become sick to spread the virus to Jewish people, minorities and police officers—suggesting that members could use spray bottles, leave bodily fluids on door handles or even spit on elevator buttons. Meanwhile, local news continues to report on cases in which individuals purposefully have coughed on or touched other people and products in grocery stores and other venues across the country.

Because of the infectious nature of the coronavirus, a single individual could easily transmit the virus to several people, causing the number of infected individuals to increase exponentially. Requests for people to socially distance and follow hygienic standards can curtail the spread among well-intentioned individuals, but both the United States and other governments are looking to criminal law to punish ill-intentioned individuals who seek to spread the virus to others and violate social distance guidelines. As concerns about the coronavirus increase, prosecutors may seek to charge such individuals with simple assault (as a Maryland prosecutor has), breach of peace (as a Connecticut prosecutor has) or even attempted murder (as prosecutors in South Africa have).

In the past week, some state prosecutors have started to charge coronavirus-related cases as terroristic threat and assault cases. But using terrorism statutes as tools to deter this behavior may prove problematic. Prosecuting these cases as terrorism—a charge that tends to carry heftier sentences than other criminal offenses—may allow the government to aggressively deter any malicious spread of the coronavirus. At the same time, however, courts and the public may view such prosecutions as improperly stretching terrorism statutes.

In Pennsylvania, a man was charged for making terroristic threats after deliberately coughing while smiling and laughing near an elderly man who was wearing a medical face mask. The man had told the victim he had COVID-19, the respiratory disease caused by the coronavirus. A similar event occurred in New Jersey, where a man allegedly purposefully coughed on a grocery store employee and said that he was infected with the coronavirus. That man was also charged with terroristic threats. In Missouri, a man was charged with making terroristic threats when he posted a video of himself licking packages at a Walmart and saying, “Who’s scared of coronavirus?” Pennsylvanian prosecutors also recently charged a woman with making terroristic threats and a threat to use a “biological agent” after coughing on $35,000 worth of food in a grocery store. Given the number of cases that have appeared already, it is possible that these cases will start showing up on a larger scale.

These incidents raise two clusters of questions. First, what are the underlying anti-terrorism statutes on which these prosecutions are or might be based, and how well do the statutes fit with these fact patterns? Second, even if it is feasible to use these statutes to prosecute those deliberately spreading the virus, should prosecutors do so?

The Basis for Federal Prosecutions

The Rosen memorandum lists several federal statutes that may be relevant. The most important is 18 U.S.C § 2332a, which criminalizes the use of weapons of mass destruction. The statute makes it a federal offense to use, threaten, or attempt to use or conspire to use a “weapon of mass destruction” against persons within the United States. Section 2332a(c)(2) defines that term to include “any weapon involving a biological agent, toxin, or vector,” as those terms are defined in 18 U.S.C § 178, which in turn defines “biological agents” to include viruses “capable of causing death, disease, or other biological malfunction in a human.” Hence, using a weapon involving a virus capable of causing death would be a federal offense.

Unlike many federal terrorism statutes, Section 2332a does not require the government to prove that the offense contains a transnational or foreign element—so an infected person who maliciously coughs on someone else might be charged even if she is not doing so as part of a campaign to, for example, support the Islamic State. The individual need not have the specific intent to kill the victim to be found guilty of a violation of § 2332a. A person found guilty of a violation of § 2332a faces imprisonment for any term of years or for life; if the offense causes death, the person could face the death penalty.

Justice Department prosecutors who seek to charge deliberate coronavirus spreaders under § 2332a will confront two challenges: the narrower issue of whether and how such cases meet the interstate commerce element required under the statute, and the broader question of whether the statute reaches these cases at all.

The relevant interstate commerce provision of 18 U.S.C. § 2332a(a)(1)(D) requires that “the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce.” In a specific sense, an interaction that exposes people to the coronavirus usually will occur between individuals within the same state or locality (unless someone coughs across state lines). And as governors begin to limit non-essential travel both within and between states in response to the coronavirus, the ability of malicious virus spreaders to affect interstate commerce may become even more limited—especially if a court takes a restrictive view of that requirement.

But in the past, courts have interpreted the requirement expansively. The anthrax hoax cases in the early 2000s demonstrate that the interstate commerce element seems to require the prosecution only to show a minimal effect on interstate commerce or show that the effect is reasonably probable. One example is United States v. Davila, a 2006 anthrax hoax case, in which the defendant mailed “anthrax” (actually baby powder) from his Connecticut prison to the Connecticut State Attorney’s office. The U.S. Court of Appeals for the Second Circuit found that the government met the interstate commerce element because it presented testimony that (1) a postal facility would be shut down, requiring the rerouting and delay of interstate mail, and (2) trucks would have to travel on the interstate highway system to transport treatment drugs.

To be clear, it is not sufficient for the government to merely allege that out-of-state personnel are required to respond to the incident. Rather, a court must find that the incident had or would have had direct effects on interstate commerce. That can be shown if responders needed to bring or use supplies that traveled across state lines or to use or lodge at facilities that engage in interstate commerce. And as Davila shows, the interstate commerce element may also be satisfied where the government can show that distribution facilities engaging in interstate commerce must be shut down, interstate mail or shipping must be delayed, or even that the government would have used interstate highways to transport federal drugs to assist in the response.

The broader legal problem in pursuing federal terrorism charges against coronavirus spreaders is that courts may prove unwilling to extend anti-terrorism federal laws, including § 2332a, to these cases. The Supreme Court’s decision in Bond v. United States suggests that this may be a real hurdle. There, in a domestic dispute, defendant Carol Bond powdered another person’s mailbox and doorknob with a burning chemical that resulted in a minor thumb burn. The Supreme Court interpreted 18 U.S.C. § 229, the implementing statute for the 1993 Chemical Weapons Convention, to exclude run-of-the-mill uses of harmful chemicals in purely local, low-level assaults. The Court found no “clear indication” that Congress had intended § 229 to apply to the kind of conduct Bond had undertaken, especially where state laws appeared adequate to punish her actions.

However, in United States v. Fries, the U.S. Court of Appeals for the Ninth Circuit held that the defendant’s actions violated § 229. The facts of Fries are quite complicated and worth an independent read, but it centered on the defendant, Todd Russell Fries, setting off a homemade chlorine gas bomb in his former clients’ driveway. Instead of throwing out the conviction under Bond, the appeals court drew an important distinction between the criminal conduct that occurred in Bond and the defendant’s actions in Fries. In particular, the court found it important that the victim’s thumb burn in Bond was easily treated with water, whereas the defendant’s use of a chlorine bomb in Fries injured several people and caused the evacuation of a residential neighborhood. On that basis, the Ninth Circuit held that the conduct in Fries fell outside Bond’s narrow reasoning. Since the defendant’s conduct constituted “possession of extremely dangerous substances with the potential to cause severe harm to many people,” the court upheld the defendant’s conviction under § 229.

How might this guide courts deciding coronavirus terrorism cases? Although the Bond and Fries cases implicated a different statute, they might nevertheless inform how courts interpret § 2332a. If a court views § 2332a through the lens of Bond, it might find that the section’s prohibition on the use of weapons of mass destruction was not intended to include an effort to use a widespread, infectious virus like the coronavirus as a “weapon.” The inclusion of the term “biological agent” arose from the Senate’s ratification of the 1975 Biological Weapons Convention, a treaty reflecting concerns that states might engage in biological warfare. As the U.S. Court of Appeals for the Fifth Circuit noted in United States v. Wise, § 2332a was arguably intended to supplement the implementing statute for that convention. It is therefore not evident that Congress’s criminalization of the use of biological agents as weapons would extend to situations in which an individual purposefully exposes another to a virus at a purely local level.

However, if a court pursues a Fries-like approach, it might uphold a § 2332a prosecution if a group were to take advantage of the coronavirus systematically—as the FBI reported white supremacist groups were considering—or if a court found that the coronavirus were extremely dangerous and that exposure to it has the potential to cause severe harm to many people.

The Bases for State Prosecutions

Many states criminalize terroristic threats, including Alaska, California, Georgia, Iowa, Massachusetts, Michigan, New Jersey, New York and Pennsylvania. Generally, these statutes apply when an individual threatens to commit an act of terrorism and communicates that threat to any other person. In New York, for instance, a terroristic threat occurs when the individual makes a threat with the intent to intimidate or coerce civilians, and causes a reasonable expectation or fear of the offense (in this situation, infection). New Jersey also criminalizes making a threat that causes the evacuation of a building, place of assembly or facility of public transportation. In many states, including Michigan, it is no defense if the individual lacks the intent or capability to commit the offense.

State prosecutors may have an easier time than their federal counterparts in one crucial way: They need not prove an interstate commerce component. As a result, these statutes may be especially useful in prosecuting (and deterring) purposeful exposure cases.

It is not unprecedented for states to use their terroristic threat statutes against individuals who threaten to infect others. There are a fair number of cases, one in 1993 and one as recent as 2016, in which a state charged an individual with making a terroristic threat when he or she threatened to infect another person with HIV/AIDS. Many states criminalize the non-disclosure of HIV to a sexual partner and prosecute it as reckless endangerment, aggravated assault or even attempted murder, with the terroristic threat charge sometimes included as an add-on to the initial charge. Whether or not it is normatively desirable to use terroristic threat statutes in HIV cases, these incidents do show that states sometimes have successfully prosecuted individuals for making terroristic threats about spreading infection. They also foreshadow potential problems in COVID-19 prosecutions: Some defendants have successfully argued that the terroristic threat statute did not reach HIV-infection threats.

In 2009, for example, an HIV-positive Michigan man was charged for biting his neighbor. Commentators argued that the law was not intended to apply in these cases, especially since assault charges may have sufficed. The judge dismissed the terrorism charges, finding that the individual did not possess HIV for an unlawful purpose and could not transmit it without the presence of blood. But in a 1993 New Jersey case, another individual was convicted of making terroristic threats, among other offenses, after biting a corrections officer and threatening to give the officer AIDS. The New Jersey court, while noting the absence of blood in the case, focused on the reasonableness of the victim’s fear and determined that the jury reasonably concluded “that the defendant’s words and conduct threatened death.”

Prosecutors may have more success in using the terroristic threats statutes in cases involving purposeful exposure to the coronavirus than in cases involving HIV for two reasons. First, the coronavirus is more infectious and transmissible than HIV. Courts have seemed hesitant in the HIV cases to find defendants guilty of making terroristic threats when it was not evident that the defendants could in fact infect the victims of the assault. The same concern should not be present in coronavirus prosecutions, because the virus can be easily transmitted through mere contact or by coughing or breathing on someone; the presence of blood is not required. Even if the infectious nature of a particular mode of transmission is disrupted, many of these statutes may focus on whether the victim’s fear of contracting the virus is reasonable. And given the pace of cases and deaths, the fear of getting the virus from someone’s cough or contact likely will be found to be reasonable.

Second, courts may be more likely to entertain such prosecutions because the country as a whole and many states individually are in declared periods of emergency. In such situations, states have broad authority to establish quarantines and order people to shelter in place. Of particular interest here is New Jersey’s terroristic threat statute, which states:

A violation of this subsection is a crime of the second degree if it occurs during a declared period of national, State or county emergency. The actor shall be strictly liable upon proof that the crime occurred, in fact, during a declared period of national, State or county emergency. It shall not be a defense that the actor did not know that there was a declared period of emergency at the time the crime occurred.

Although many other state terroristic threat statutes do not include a similar provision, at least in New Jersey the existence of a declared period of emergency renders individuals strictly liable for making terroristic threats.

Normative Questions

It may be possible to prosecute purposeful coronavirus exposure cases at the federal and state levels, but two broader concerns arise. First, if prosecutors choose to prosecute such cases, should federal or state governments take the lead? Second, should these cases be prosecuted as “terrorism” at all?

In light of the track record of successful state prosecutions for infecting others with COVID-19 or other communicable diseases, perhaps states are best positioned to take the lead. But not all states with relevant statutes on the books may choose to prosecute purposeful exposure cases under their terrorism statutes or general-purpose criminal laws. This could result in a patchwork of prosecutions, where some states aggressively prosecute these individuals and some states don’t.

A federal decision to prosecute purposeful exposure cases could reiterate—across the United States—the seriousness of these crimes. This uniform practice could achieve a stronger deterrent effect, especially in a pandemic, where it is critical to delay the spread of the virus.

The second, related question is whether federal and state prosecutors should treat these cases as terrorism cases at all. As Bobby Chesney noted in discussing domestic terrorism, states have “a wide array of general-purpose state criminal laws applicable to terrorist acts: murder, attempted murder, conspiracy.” These laws, some of which might also apply to coronavirus infection cases, carry hefty sentences and are well established in the law. There is an argument, then, that there is no need to prosecute infection cases as “terrorism” cases.

More broadly, the average person who intentionally coughs on another person while he has COVID-19 may not be aware that he could be committing a terrorist act. The coronavirus pandemic arose suddenly and has few modern precedents. There is an argument that, before the government prosecutes a person as a terrorist for this act, Congress should make an affirmative decision that this type of behavior is a category of terrorism and enact a specific statute criminalizing it as such. After all, it is far from clear that either Congress or the state legislatures, in enacting terrorism laws, intended to cover these particular and novel instances of purposeful exposures to the coronavirus. At the same time, it is not unprecedented for anti-terrorism laws to be used in novel ways, and the cases referenced above show that their use in the current setting may not be that novel.

As a final point, to ensure that these prosecutions do not increase the spread of the virus, prosecutors may be wise to pursue summonsable charges that carry fines rather than terrorism charges that require the individual to be transported to jail or prison or that are punishable only by imprisonment. First, if officers charge offenses for which a summons may be issued, officers would not need to take the offending individual—who has or claims to have COVID-19—into custody and thereby risk greatly exposing themselves and inmates to the virus. The individual would have to return to her home and self-quarantine; and, if there’s reason to believe she will not isolate herself, the court could employ home electronic monitoring or, more drastically, the police department could post officers outside her residence—as a Kentucky county sheriff’s office did in one case—to prevent her from leaving. Second, by adopting a prosecution strategy that ultimately requires the individual to pay a fine (rather than be sentenced to prison or jail time), the individual will not further burden a system that is currently ill-equipped to isolate or treat COVID-19 patients. Prosecutors can still achieve the desired deterrent effect while not compromising the purpose of prosecution in the first place.

The intentional spread of the coronavirus cannot be tolerated and should be taken very seriously. But it is not clear that federal and state governments should prosecute those intentionally spreading the virus under terrorism statutes. As long as terrorism statutes are not the only option for prosecutors, they should think hard about whether it is necessary to invoke these provisions to prevent, deter and punish this conduct.