Extortion as Defined by Statute

18 U.S.C. §1951(a)(2) defines extortion as the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

Canadian criminal code section 346(1) says "[e]very one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done."

Elements of Extortion

There are essentially three elements to the offense of extortion. (1) Coercion was employed, (2) without reasonable justification or excuse, and (3) to obtain property in the United States or anything in Canada.

Coercion

The coercion element of the extortion statutes includes threats, menaces, violence, fear, accusations, or official right.

Threat

A threat is an exchange. You do this, or else I will do that.

Examples of bad threats:

  1. Pay me, or else I will shoot you.
  2. Pay me, or else I will call the police and report you for crime.
  3. Pay me, or else I will arrest you

Examples of allowable threats:

  1. Pay me, or else I will stop working for you, or put you on a "stop list."1
  2. Pay me, or else you cannot have my eggs.
A threat is only wrongful if it is unjustified.

Menaces

A menace is something that threatens to cause evil or harm.

Examples:

  • Pay me, or else I will block entrance to your business.

Violence

Violence is either an act or a threat of an unwanted contact.

Examples:

  1. Inflicting a physical injury and carrying away property.
  2. A threat of violence. Pay me, or else I will inflict a physical injury.

Fear

Fear is a state of mind that something is dangerous and likely to cause pain or injury.

Examples:

  1. Afraid of being punished for crime.
  2. Afraid of being physically injured.

Accusations

An accusation is coercive. An accusation puts a person in fear of a punishment, which is likely to cause pain or injury. An accusation is like blackmail.

Examples:

  1. Pay me, or else I will call the police and report you for crime.
  2. Pay me, or else I will prosecute you for crime.

Official Right

At common-law extortion was a "separate public official offense punishing the conduct of public officials who sought personal financial gain under colour of their office. It has since been statutorily expanded in some jurisdictions, such as Canada, to include more familiar forms of blackmail." R v. Davis, [1999] 3 SCR 759.

At common law, extortion was an offense committed by a public official who took 'by colour of his office' money that was not due to him for the performance of his official duties. A demand, or request, by the public official was not an element of the offense. Extortion by the public official was the rough equivalent of what we would now describe as 'taking a bribe.' Evans v. United States, 504 U.S. 255 (1992).

The Supreme Court of the United States said in Evans v. United States, 504 U.S. 255:

As we explained above, our construction of the statute is informed by the common-law tradition from which the term of art was drawn and understood. We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.

Without Reasonable Justification or Excuse

In Canada there is a reasonable justification or excuse clause contained within the extortion statutes. In the United States, the threat needs to be one of force, or under color of official right. If a person is justified in their action, then they have done nothing wrongful. A person has reasonable justification or excuse if he is not demanding more than is due2 and he is using his or her own power or property to negotiate and not trespassing on other people's power.

Examples of Reasonable Justification or Excuse:

  1. Pay me, or else I will stop working for you and/or put you on a "stop list".
  2. Pay the Government, or else I will take or withhold an official act.
  3. Pay the bank, or else I will take or withhold a banking act and foreclose on your home.
  4. Pay me, or else I will sue you.

Under Color of Official Right

Color is crossing the line between public and private beneficiaries and therefore the public official is not entitled to the payment. In Wilkie v. Robbins, 551 U.S. 537 (2007) the Supreme Court of the United States said:

The importance of the line between public and private beneficiaries for common law and Hobbs Act extortion is confirmed by our own case law, which is completely barren of an example of extortion under color of official right undertaken for the sole benefit of the Government.

Conclusion on Elements of Extortion

Extortion mainly depends on what you are negotiating with. A person can negotiate with their own property and power. But a person cannot negotiate with violence or with the Government's property and power, unless the benefit is solely for the Government. The crime at common-law was essentially a trespass on the King's coercion.

The Right to a Jury

The right to a jury trial comes from the right not to be extorted. In Wilkie v. Robbins, 551 U.S. 537 (2007) the Supreme Court of the United States said:
Whaley was about a charge of extortion against a justice of the peace who wrongfully ordered a litigant to pay compensation to the other party as well as a small administrative fee to the court. Because the case involved illegally obtaining property for the benefit of a private third party, it does not stand for the proposition that an act for the benefit of the Government alone can be extortion.

Courts of Law vs. Courts of Equity

I argue the extortion laws is why a court of law obtained property and therefore required a jury. This is why an action for replevin is at law. A court of equity enforced property rights. This is why an action for specific performance is in equity. A Court of Chancery can be judge alone because the court does not obtain property rights. It enforces them. Like the police.

Conclusion

A person can never be legally deprived of any of their rights by public officials not solely for thebenefit of government. A jury is required to transfer rights from one private party to another.
1. [R. v. Natarelli, [1967] SCR 539]
2. [R. v. Natarelli, [1967] SCR 539]
3. [Evans v. United State, [1967] SCR 539]

Written by Joel Allan Sumner