Volume 58

Bioterrorism or Over-Deterrence? The Use of Federal Terrorism Statutes to Counter COVID-19 "Hoaxes"

by Zachary Mitchell

 As the COVID-19 pandemic surged and local governments began issuing stay-at-home orders, Florida police responded to a domestic violence call involving James Jamal Curry. While police handcuffed Curry, he coughed on one of the officers and claimed that he had Coronavirus. Curry, who later tested negative for COVID-19, was charged in federal court with perpetrating a biological weapons hoax under 18 U.S.C. § 1038(a)(1), which carries a maximum sentence of five years in prison. 

The charges against Curry coincided with a memorandum from then-Deputy Attorney General Jeffrey Rosen suggesting that intentionally exposing others to COVID-19, as well as purporting to do so with “malicious hoaxes,” could be prosecuted through federal terrorism statutes. Although the law surrounding the use of these statutes to prosecute COVID-19 hoaxes is still developing, the types of charges leveled against Curry and contemplated in the Rosen memorandum raise questions surrounding their applicability and desirability as a matter of policy. 

This Comment argues that prosecuting the false spread of COVID-19 under federal terrorism statutes is not advisable. Part I of this Comment further describes the Rosen memorandum and identifies cases where prosecutors have applied federal terrorism statutes to Coronavirus-related hoaxes. Part II analyzes the viability of prosecutions under two of the most commonly used terrorism statutes, discussing how Bond v. United States might prevent the widespread extension of these laws to such cases. Part III raises policy concerns that further militate against the use of these federal terrorism statutes to prosecute COVID-19 hoaxes. 

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