Dylann Roof's defense team is challenging the constitutionality of the federal hate crimes law, a legal longshot they say they'll drop if prosecutors agree not to pursue the death penalty in the killings of nine people inside a South Carolina church.
The white man accused of shooting black parishioners inside the historic Emanuel AME church in Charleston wants a judge to dismiss the nearly three-dozen federal charges he faces, saying they infringe on the state's murder case.
The hate crimes statute "affords the federal government virtually unchecked discretion to prosecute crimes already being punished by the states," his lawyers argue.
Also, while South Carolina lacks a state hate crimes law, there's no data showing that such crimes are going unpunished even in states without their own statute, according to the motion attorney Sarah Gannett filed Tuesday to U.S. District Judge Richard Gergel.
Roof, 22, is charged with 33 federal violations, including hate crimes and obstructing the practice of religion, for the June 2015 shootings at Emanuel AME in Charleston. Authorities say Roof told a friend he wanted to start a race war and then sat in on a Bible study where he killed nine participants.
All the alleged crimes took place within South Carolina, Gannett argues, and the only links to areas outside the state "are the use of the internet and use of a gun and ammunition that had been manufactured out-of-state."
The charges, therefore, can't be interpreted to have any effect on interstate commerce — a provision that governs federal crimes — as the "statutory provision contains no reference to commerce or economic activity other than a boiler-plate jurisdictional element."
Gannett, a federal public defender in Arizona who recently joined Roof's defense team, said she'd drop the challenge if federal prosecutors agree not to pursue the death penalty.
Roof's attorneys have previously said he would plead guilty if the death penalty were off the table entirely.
Prosecutors have until July 25 to respond.
Roof's federal trial is set to begin in November. State prosecutors are also pursuing the death penalty on charges including murder, attempted murder and weapons violations. Their case is slated for January.